"Should Bush administration officials be put on trial for crimes such as authorizing torture?"

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Assuming that we intend to live in what John Adams called a nation of laws, not men, this ought to be an easy one. Is there probable cause to believe that Bush administration officials (notably including one George W. Bush) authorized torture? Of course. The executive orders are publicly available, and Bush has openly admitted to what most informed observers call authorizing torture. This has been known for years, but the Senate Armed Services Committee recently admitted the point in a detailed report that caught the attention of the Washington Post and even Ruth Marcus. That report begins with this summary:

"The abuse of detainees in U.S. custody cannot simply be attributed to the actions of "a few bad apples" acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority."

The report goes on to detail steps taken, beginning with Bush's February 7, 2002, order illegally and laughably, if tragically, declaring that the Geneva Conventions did not apply to certain people. The report also details the president's efforts to "redefine the law" by requesting "legal opinions" that illegal acts would now be legal.

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Ruth Marcus's column continues:

"Personally, I'm just relieved to have this crowd heading out of office and its policies -- on torture, on indefinite detention, on warrantless wiretapping, on overweening executive power -- soon to be inoperative."

This is both a blatant and a subtle statement. It's blatantly violative of the idea of a rule of law. Imagine telling a state trooper who pulls you over for speeding that he should just be relieved to watch you drive away (and where he can stick his ticket). It's subtly manipulative in that prior to this administration no president had any "policies on torture". Torture was and is simply illegal. It is illegal in all forms and in all times and places, no matter what. The idea that there can be better and worse "policies on" this is destructive of the very notion of legality. And, yes, that legality includes laws against murder. Numerous victims of torture under Bush have been tortured to death. A CIA employee has been sentenced to 8 years in prison for interrogating a detainee by beating him to death. And, of course, it's also insidious to suggest that what we need is a different variety of policy on indefinite detention or warrantless spying, both actions involving stark violations of law openly admitted to.

Marcus continues:

"But the imminent arrival of the Obama administration has sparked a renewed clamor for criminal investigation and prosecution in some quarters on the left. Vice President Cheney stoked the flames with an ABC interview in which he was typically unrepentant about the waterboarding of Khalid Sheikh Mohammed and particularly explicit about his own involvement."

While many of us have been demanding impeachment and prosecution for years, some voices are now focused on prosecution because they've given up on getting impeachment. Others are newly focused on prosecution because they are raising alarms about the danger of Bush pardoning crimes he authorized. Obama's arrival is marginally relevant to the movement for accountability, which is seeking prosecution at the district, state, civil, foreign, and international levels, as well as federal. But framing this as Obama versus Bush allows Marcus to suggest a partisan spat, a framing that leads ultimately, in many people's minds (including Alan Dershowitz's), to the conclusion that Bush must not be prosecuted because he is a member of a political party. Cheney "stoked the flames"? Imagine if your neighbor killed his wife and then went on TV and bragged about it. Would the local columnists denounce that as fanning the flames of hysteria, as encouraging the radicals who were demanding prosecution of your neighbor? Of course not. So, what's wrong with our national columnists?

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Marcus continues, and brings up the report I mentioned above, but lists it as one more element fanning the flames:

"New York Democratic Rep. Jerrold Nadler wrote to Attorney General Michael Mukasey demanding a special prosecutor. (Good luck with that.) The New York Times called the Senate report 'a strong case for bringing criminal charges' against Rumsfeld and Pentagon legal counsel William Haynes, and maybe even Alberto Gonzales and Cheney aide David Addington."

David Swanson is the author of "When the World Outlawed War," "War Is A Lie" and "Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union." He blogs at http://davidswanson.org and http://warisacrime.org and works for the online (more...)